Saturday, December 27, 2014

Military courts proposal challenged in Pakistani courts and editorial

The legal reaction to the part of the "National Action Plan" that proposes the establishment of military courts in Pakistan has begun. The Daily Timesreports that petitions have been filed in both the Supreme Court and the Islamabad High Court. The Supreme Court case,

filed by Barrister Zafarullah, stated that a parallel judicial system cannot function in the country nor the constitution allows it. The petitioner pleaded that military courts cannot hear cases of civilians, and noted that the Supreme Court has already given its verdict against the formation of military courts. . . .

As for the second case,

[the] participation of Attorney General (AG) Suleman Butt in legal consultations for setting up military courts (MC) has been challenged in the Islamabad High Court (IHC). Shahid Orakzai, in his petition filed on Friday, has requested the IHC to inquire from AG if he has any orders issued by federal government in respect of constitutional amendments. The petitioner said that he would withdraw his petition if written orders of federal government are provided in the court otherwise court should declare that article 57 of the constitution does not allow AG to work out draft of constitutional amendment.

A stay order has also been sought from court lest this illegal step on the part of AG may cause any harm to constitution. The petitioner made it clear on the court that AG has not taken oath under the constitution.

Whatever one thinks about the military courts proposal on the merits, both cases seem strange. In the first, if the plan is to amend the Constitution to permit the new courts, how can that be objected to? Can a constitutional amendment be unconstitutional? In the second, does the Attorney General need legislation simply to prepare a draft?The Nation has published an editorial questioning the military courts proposal. It argues that

the judiciary is an impartial arbiter, a judge with even the slightest conflict of interest is supposed to remove himself from the bench; here the military is both judge and a party to the crime. These courts are an executive institut[ion] with a concrete objective: convicting terrorists, how can you expect it to function impartially. Consider this; if the judge is from the same institut[ion] whose members the defendant is accused of murdering, can we be certain that vengeance won’t play a part? As the ATC [Anti-Terrorism Courts] are well aware, terrorism is a vague, nebulous term; these military courts can end up trying Baloch or Sindhi political dissidents under terrorism charges. Since the sentences passed out are in single-paragraph statements, with no requirement of mentioning the findings and reasons for which the particular punishment is handed out, separating true terrorists from political convictions is nigh impossible, especially since their judgements cannot be challenged in civilian courts. The COAS [Chief of Army Staff] ensures that only “jet black terrorists” will be tried, but is that not presupposing their guilt and rubberstamping it through the court? Answering one injustice with another will lead us nowhere.